Stocker v. Clark Refining Corp.

• Decision Date: 30 May 1972
• Docket Number: Docket No. 11371,No. 1,1
• Citation: 199 N.W.2d 862,41 Mich.App. 161
• Parties: Allen STOCKER, Plaintiff-Appellant, v. CLARK REFINING CORPORATION, a foreign corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 862

199 N.W.2d 862

41 Mich.App. 161

Allen STOCKER, Plaintiff-Appellant, v. CLARK REFINING CORPORATION, a foreign corporation, Defendant-Appellee.

Docket No. 11371.

Court of Appeals of Michigan, Division No. 1.

May 30, 1972.

Released for Publication Aug. 23, 1972.

Michael H. Feiler, Detroit, for plaintiff-appellant.

Richard R. Barr, East Detroit, for defendant-appellee.

Before FITZGERALD, P.J., and McGREGOR and O'HARA, ^* JJ.

O'HARA, Judge.

Plaintiff appeals from an adverse directed verdict.

There is no particular dispute as to the facts. At approximately 2:30 a.m. on February 3, 1968, plaintiff drove into a Clark service station to purchase gasoline and to put air into a tire. As plaintiff stepped out of his car, apparently to pay for the gasoline, he allegedly slipped and fell on a patch of ice, injuring himself. An hour later he called the gas station attendant to ask what the 'company' would do about the injury. Plaintiff was told to call back when the owner was there. Apparently, nothing came of the call.

Plaintiff subsequently brought suit against Clark Refining Corporation, the present defendant, and Only against Clark.

Defendant is the owner of the property upon which plaintiff injured himself. It leases it to one Thomas Eldridge. At trial the defendant raised the defense that it was not liable to plaintiff because of its lease to Eldridge. The trial court granted the defendant's motion for a directed verdict on the basis of Bluemer v. Saginaw Oil Service, 356 Mich. 399, 97 N.W.2d 90 (1959).

This Court is not generally disposed to consider an issue not briefed and referred to only obliquely by the parties on appeal. In the present case, however, our review of the record reveals an irregularity too significant to be overlooked.

During oral arguments, counsel for plaintiff drew our attention to the fact that at trial plaintiff objected to the introduction of the lease between defendant and Eldridge on the ground that it was neither pleaded nor produced at the pretrial conference. The record confirms this.

The trial judge was manifestly disturbed by this completely new defense raised without prior indication of the existence of the lease in the pleadings or the pretrial summary.

The trial judge observed:

'To me, this could have been pleaded the very minute the paper hit the defendant * * * it could have been done six weeks ago, last week or six months ago on a motion for a summary judgment. I don't know why it wasn't done.'

Later the following colloquy took place:

'The Court: What is your motion?

'Mr. Cannon (for plaintiff): My motion is to strike the opening statement on the ground that he is going to introduce a lease to show that there is no liability on the Clark Oil Corporation and it is not pleaded as part of his affirmative defense in this matter.

'A matter not pleaded is not part of the affirmative defense and cannot be introduced assuming otherwise that he is pleading an affirmative defense which is incorporated as true. I want to read the affirmative defense. It does not mention the lease, never mentions it in any pleadings. This is not known to the plaintiff and, as I say, it is going to come up in this case and I believe it is improper for the Court to allow the defendant, at this point, to introduce a defense which has never been mentioned in my three years that this case has been pending.

'Mr. Barr (for defendant): Your Honor, I think the Court must take notice of all the pleadings of the whole file, including the affidavit, including the affirmative defenses.

'I am the defendant and one of the defendant's affirmative defenses and one of the specific defenses is that Clark Oil had no duty to maintain these premises. In support of this averment, we're intending to introduce a lease. This is a matter or proof in support of our contention. This is not a new direction.

'The Court: Gentlemen, we're right back where we started. The case has been poorly handled. I must make the statement that as far as getting the issue before the jury and before the Court is all that is of concern here. The defendant should have come in and indicated his position. The plaintiff had pretrial discovery to find the lessor and lessee and we would not have been in this position.

'Do you understand the position the Court is in?

'Mr. Barr: Yes.

'The Court: If the proper discovery had been made by you, Mr. Cannon, as to the ownership, operation and control of the premises, we never would have been here discussing this, using your time and the Court's time in trying to determine the legal issue that should have been determined two years ago.

'It's not the Court's fault. The defendant should have answered that we're the owner of the property and we lease it and so on and so forth. He didn't want to because of the fact he is protecting the owner of the service station.

'This Court may take leave of this case and send the case back on the call and let the other defendant be joined in so the case could be heard and decided. But, I don't care for the position the Court is being put in. I am going to deny your motion to strike the statement and get on to the other exhibits to see if they can be introduced at this time or not.'

The responsive pleading of the defendant raised the following affirmative defenses:

'(That defendant) was not under a duty to maintain the...